ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. IRREVOCABLE STANDBY LETTER OF CREDIT NO. ____________ DATE: ______________, 20__ BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: _________ IN YOUR FAVOR FOR THE ACCOUNT OF ______________ (THE "SELLER") FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS: 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ______________ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE SECOND (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE THIRD) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER [INSERT] DATE [INSERT].” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. MISCELLANEOUS THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] __________________________ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK SIGHT DRAFT Letter of Credit No. __________ Date of Letter of Credit: ______________ Date of Draft: ______________ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ____________________________ Dollars (U.S. $____________). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ___________. Payment by the bank pursuant to this drawing shall be made to _________________________, ABA Number ___________________________, Account Number _____________________, Attention: _______________________________, Re: _____________________________. To: [Issuing Bank] [Address] Attention: ______________ ______________________________ As Beneficiary By: __________________________ PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: _____________ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. _______ (“Agreement) in the aggregate amount of $_____________________, (“Letter of Credit Amount”) either [check the appropriate space]: _____ Seller failed to provide and maintain contract security in the manner required by Article XV of Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller failed to provide to NYSERDA proof that the system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by Section 13.01(e) of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; _____the Letter of Credit is currently set to expire within thirty (30) days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

Appears in 3 contracts

Samples: Offshore Wind Renewable Energy Certificate Purchase and Sale Agreement, Purchase and Sale Agreement, Offshore Wind Renewable Energy Certificate Purchase and Sale Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. EXHIBIT B LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. ~~____________~~ DATE: ~~______________~~, ~~20__~~ 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: ~~_________~~ IN YOUR FAVOR FOR THE ACCOUNT OF ______________ (THE "SELLER") FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS:OF 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ~~______________~~ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE ~~5:00~~ 2:00 P.M., NEW YORK TIME, ON THE ~~SECOND~~ NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE ~~THIRD~~SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER ~~[INSERT]~~ DATE ~~[INSERT]~~.” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. ~~MISCELLANEOUS~~ IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED WITHOUT WRITTEN AMENDMENT FOR ONE YEAR PERIODS FROM THE PRESENT OR ANY FUTURE EXPIRY DATE UNLESS AT LEAST 30 CALENDAR DAYS PRIOR TO SUCH EXPIRATION DATE, WE SEND THE BENEFICIARY NOTICE AT THE ABOVE STATED ADDRESS BY OVERNIGHT COURIER THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT BEYOND THE INITIAL OR ANY EXTENDED EXPIRY DATE HEREOF. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] ~~__________________________~~ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit B - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. ~~__________~~ Date of Letter of Credit: ~~______________~~ Date of Draft: ~~______________~~ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ~~____________________________~~ Dollars (U.S. ~~$____________~~$ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ~~___________~~. Payment by the bank pursuant to this drawing shall be made to ~~_________________________~~, ABA Number ~~___________________________~~, Account Number ~~_____________________~~, Attention: ~~_______________________________~~, Re: ~~_____________________________~~. To: [Issuing Bank] [Address] Attention: ~~______________ ______________________________ As Beneficiary~~ By: ~~__________________________~~ [Name and Title] PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: ~~_____________~~ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. ~~_______~~ (“Agreement) in the aggregate amount of ~~$_____________________~~$ , (“Letter of Credit Amount”) either [check the appropriate space]: _____ Seller failed to provide and maintain contract security in the manner required by Article XV of Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller failed to provide to NYSERDA proof that the system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by Section 13.01(e) of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; _____the Letter of Credit is currently set to expire within thirty (30) days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

Appears in 2 contracts

Samples: Renewable Energy Standard Agreement, Renewable Energy Standard Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. EXHIBIT B LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. ~~____________~~ DATE: ~~______________~~, ~~20__~~ 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 ~~LADIES AND GENTLEMEN:~~ BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: ~~_________~~ IN YOUR FAVOR FOR THE ACCOUNT OF ______________ (THE "SELLER") FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS:OF 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ~~______________~~ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE ~~5:00~~ 2:00 P.M., NEW YORK TIME, ON THE ~~SECOND~~ NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE ~~THIRD~~SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER ~~[INSERT]~~ DATE ~~[INSERT]~~.” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. ~~MISCELLANEOUS~~ IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED WITHOUT WRITTEN AMENDMENT FOR ONE YEAR PERIODS FROM THE PRESENT OR ANY FUTURE EXPIRY DATE UNLESS AT LEAST 30 CALENDAR DAYS PRIOR TO SUCH EXPIRATION DATE, WE SEND THE BENEFICIARY NOTICE AT THE ABOVE STATED ADDRESS BY OVERNIGHT COURIER, ATTN: NYSERDA GENERAL COUNSEL, WITH ELECTRONIC COPIES SENT TO XXXXXXXX@XXXXXXX.XX.XXX AND XXX@XXXXXXX.XX.XXX, THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT BEYOND THE INITIAL OR ANY EXTENDED EXPIRY DATE HEREOF. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] ~~__________________________~~ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK ~~SIGHT DRAFT~~ Letter of Credit No. ~~__________~~ Date of Letter of Credit: ~~______________~~ Date of Draft: ~~______________~~ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ~~____________________________~~ Dollars (U.S. ~~$____________~~$ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ~~___________~~. Payment by the bank pursuant to this drawing shall be made to ~~_________________________~~, ABA Number ~~___________________________~~, Account Number ~~_____________________~~, Attention: ~~_______________________________~~, Re: ~~_____________________________~~. To: [Issuing Bank] [Address] Attention: ~~______________ ______________________________ As Beneficiary~~ By: ~~__________________________ PAYMENT CERTIFICATE~~ [Name and Title] To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: ~~_____________~~ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. ~~_______~~ (“Agreement) in the aggregate amount of ~~$_____________________~~$ , (“Letter of Credit Amount”) either [check the appropriate space]: _____ Seller failed to provide and maintain contract security in the manner required by Article XV of Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller failed to provide to NYSERDA proof that the system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by Section 13.01(e) of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; _____the Letter of Credit is currently set to expire within thirty (30) days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

Appears in 2 contracts

Samples: Standard Form Agreement, Res Standard Form Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. LETTER OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. ~~____________~~ DATE: ~~______________~~, ~~20__~~ 2024 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: ~~_________~~ IN YOUR FAVOR FOR THE ACCOUNT OF ~~______________~~ (THE "“SELLER"”) FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS~~: 1.~~ : YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "“SIGHT DRAFT"”); ~~AND 2.~~ AND A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "“PAYMENT CERTIFICATE"”). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ~~______________~~ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE SECOND (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE THIRD) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER [INSERT] DATE [INSERT].” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. MISCELLANEOUS THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] ~~__________________________~~ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. ~~__________~~ Date of Letter of Credit: ~~______________~~ Date of Draft: ~~______________~~ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ~~____________________________~~ Dollars (U.S. ~~$____________~~$ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ~~___________~~. Payment by the bank pursuant to this drawing shall be made to ~~_________________________~~, ABA Number ~~___________________________~~, Account Number ~~_____________________~~, Attention: ~~_______________________________~~, Re: ~~_____________________________~~. To: [Issuing Bank] [Address] Attention: ~~______________ ______________________________~~ As Beneficiary By: ~~__________________________~~ [Name and Title] Annex B - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: ~~_____________~~ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. ~~_______~~ (“Agreement”) in the aggregate amount of ~~$_____________________~~$ , (“Letter of Credit Amount”) either [check the appropriate space]: ~~_____ Seller failed to provide and maintain contract security in the manner required by Article~~ SELLER FAILED TO PROVIDE AND MAINTAIN CONTRACT SECURITY IN THE MANNER REQUIRED BY ARTICLE XV ~~of Agreement~~OF AGREEMENT, ~~under which circumstance~~ UNDER WHICH CIRCUMSTANCE NYSERDA ~~is authorized and entitled to draw an amount equal to one~~IS AUTHORIZED AND ENTITLED TO DRAW AN AMOUNT EQUAL TO ONE-~~hundred~~ HUNDRED (100) ~~percent of the Letter of Credit Amount~~PERCENT OF THE LETTER OF CREDIT AMOUNT. ~~_____ The Agreement has been Terminated prior to Commercial Operation~~THE AGREEMENT HAS BEEN TERMINATED DUE TO A SELLER EVENT OF DEFAULT IF SUCH EVENT OF DEFAULT REMAINS UNCURED AFTER THE EXPIRATION OF THE APPLICABLE CURE PERIOD OR PRIOR TO COMMERCIAL OPERATION UPON SELLER ATTESTATION THAT THE PROJECT IS LESS THAN TWENTY FIVE (25) PERCENT CONSTRUCTED ON AN INSTALLED CAPACITY BASIS AND SELLER HAS RELINQUISHED EFFORT TO FURTHER DEVELOP OR CONSTRUCT THE PROJECT; ~~under which circumstance~~ UNDER WHICH CIRCUMSTANCE NYSERDA ~~is authorized and entitled to draw an amount equal to one~~IS AUTHORIZED AND ENTITLED TO DRAW AN AMOUNT EQUAL TO ONE-~~hundred~~ HUNDRED (100) ~~percent of the Letter of Credit Amount~~PERCENT OF THE LETTER OF CREDIT AMOUNT. ~~_____ Seller failed to provide to~~ ANY WITHDRAWAL BY SELLER FROM THE NYISO INTERCONNECTION PROCESS OR SELLER FAILED TO ENTER INTO THE INTERCONNECTION AGREEMENT FOR THE SELECTED PROJECT WITHIN THE TIMELINE PRESCRIBED BY SECTION 13.01(E) OF THE AGREEMENT; UNDER WHICH CIRCUMSTANCE NYSERDA proof that the system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by Section 13.01(e) of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to oneIS AUTHORIZED AND ENTITLED TO DRAW AN AMOUNT EQUAL TO ONE-~~hundred~~ HUNDRED (100) ~~percent of the Letter of Credit Amount~~PERCENT OF THE LETTER OF CREDIT AMOUNT. SELLER FAILED TO SUBMIT ITS CONSTRUCTION AND OPERATIONS PLAN TO THE BUREAU OF OCEAN ENERGY MANAGEMENT WITHIN THE U.S. DEPARTMENT OF THE INTERIOR WITHIN THE TIMELINE PRESCRIBED BY SECTION 13.01(F) OF THE AGREEMENT OR ANY VOLUNTARY WITHDRAWAL OF ANY SUCH SUBMISSION; ~~_____the Letter of Credit is currently set to expire within thirty~~ UNDER WHICH CIRCUMSTANCE NYSERDA IS AUTHORIZED AND ENTITLED TO DRAW AN AMOUNT EQUAL TO TEN (10) PERCENT OF THE LETTER OF CREDIT AMOUNT. AFTER COMMERCIAL OPERATION, CONSTRUCTION OF THE SELECTED PROJECT IS DELAYED SUCH THAT THE OPERATIONAL INSTALLED CAPACITY IS BETWEEN 95% AND 80% OF THE OFFER CAPACITY ON OR BEFORE THE EXPIRATION OF THE TWELVE (12) MONTHS AFTER COMMERCIAL OPERATION AND SELLER HAS NOTIFIED NYSERDA IN WRITING OF SUCH CIRCUMSTANCE AND THE REASON FOR DELAY; NYSERDA IS AUTHORIZED TO DRAW FIFTY (50) PERCENT OF THE LETTER OF CREDIT AMOUNT. AFTER COMMERCIAL OPERATION, CONSTRUCTION OF THE SELECTED PROJECT IS DELAYED SUCH THAT THE OPERATIONAL INSTALLED CAPACITY WILL NOT EXCEED 80% OF THE OFFER CAPACITY ON OR BEFORE THE EXPIRATION OF TWENTY-FOUR (24) MONTHS AFTER COMMERCIAL OPERATION; UNDER WHICH CIRCUMSTANCE NYSERDA IS AUTHORIZED AND ENTITLED TO DRAW AN AMOUNT EQUAL TO ONE- HUNDRED (100) PERCENT OF THE LETTER OF CREDIT AMOUNT. SELLER FAILED TO SUBMIT ITS CERTIFICATE APPLICATION TO THE NEW YORK PUBLIC SERVICE COMMISSION WITHIN THE TIMELINE PRESCRIBED BY SECTION 13.01(I) OF THE AGREEMENT OR ANY VOLUNTARY WITHDRAWAL OF ANY SUCH APPLICATION; UNDER WHICH CIRCUMSTANCE NYSERDA IS AUTHORIZED AND ENTITLED TO DRAW AN AMOUNT EQUAL TO TEN (10) PERCENT OF THE LETTER OF CREDIT AMOUNT. SELLER FAILED TO COMMENCE CONSTRUCTION OF THE SELECTED PROJECT WITHIN THE TIMELINE PRESCRIBED BY SECTION 13.01(L) OF THE AGREEMENT; UNDER WHICH CIRCUMSTANCE NYSERDA IS AUTHORIZED AND ENTITLED TO DRAW AN AMOUNT EQUAL TO TEN (10) PERCENT OF THE LETTER OF CREDIT AMOUNT. SELLER HAS ASSIGNED ITS RIGHTS UNDER THE AGREEMENT AND THE ASSIGNEE HAS NOT DELIVERED TO THE UNDERSIGNED BENEFICIARY A REPLACEMENT LETTER OF CREDIT SATISFYING THE REQUIREMENTS OF THE AGREEMENT; UNDER WHICH CIRCUMSTANCE NYSERDA IS AUTHORIZED AND ENTITLED TO DRAW AN AMOUNT EQUAL TO ONE-HUNDRED (100) PERCENT OF THE LETTER OF CREDIT AMOUNT; THE OPERATIONAL INSTALLED CAPACITY IS LESS THAN 95% OF THE OFFER CAPACITY BY A DATE THIRTY (30) ~~days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration~~DAYS PRIOR TO THE EXPIRATION OF THE LETTER OF CREDIT AND THE SELLER HAS NOT MADE ARRANGEMENTS ACCEPTABLE TO THE UNDERSIGNED BENEFICIARY TO PROVIDE A SUBSTITUTE LETTER OF CREDIT PRIOR TO SUCH EXPIRATION; ~~under which circumstance~~ UNDER WHICH CIRCUMSTANCE NYSERDA ~~is authorized and entitled to draw an amount equal to one-hundred~~ IS AUTHORIZED AND ENTITLED TO DRAW AN AMOUNT EQUAL TO ONE- HUNDRED (100) ~~percent of the Letter of Credit Amount~~PERCENT OF THE LETTER OF CREDIT AMOUNT. The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

Appears in 2 contracts

Samples: Offshore Wind Renewable Energy Certificate Purchase and Sale Agreement, Offshore Wind Renewable Energy Certificate Purchase and Sale Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. EXHIBIT B LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. ~~____________~~ DATE: ~~______________~~, ~~20__~~ 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: ~~_________~~ IN YOUR FAVOR FOR THE ACCOUNT OF ______________ (THE "SELLER") FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS:OF 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ~~______________~~ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE SECOND (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE THIRD) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER [INSERT] DATE [INSERT].” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. ~~MISCELLANEOUS~~ THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] ~~__________________________~~ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit B - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. ~~__________~~ Date of Letter of Credit: ~~______________~~ Date of Draft: ~~______________~~ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ~~____________________________~~ Dollars (U.S. ~~$____________~~$ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ~~___________~~. Payment by the bank pursuant to this drawing shall be made to ~~_________________________~~, ABA Number ~~___________________________~~, Account Number ~~_____________________~~, Attention: ~~_______________________________~~, Re: ~~_____________________________~~. To: [Issuing Bank] [Address] Attention: ~~______________ ______________________________~~ As Beneficiary By: ~~__________________________~~ [Name and Title] PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: ~~_____________~~ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. ~~_______~~ (“Agreement) in the aggregate amount of ~~$_____________________~~$ , (“Letter of Credit Amount”) either [check the appropriate space]: _____ Seller failed to provide and maintain contract security in the manner required by Article XV of Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller failed to provide to NYSERDA proof that the system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by Section 13.01(e) of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; _____the Letter of Credit is currently set to expire within thirty (30) days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

Appears in 1 contract

Samples: Offshore Wind Renewable Energy Certificate Purchase and Sale Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. EXHIBIT B LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. ~~____________~~ DATE: ~~______________~~, ~~20__~~ 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: ~~_________~~ IN YOUR FAVOR FOR THE ACCOUNT OF ______________ (THE "SELLER") FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS:OF 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ~~______________~~ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE SECOND (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE THIRD) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER [INSERT] DATE [INSERT].” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. ~~MISCELLANEOUS~~ THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] ~~__________________________~~ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit B - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. ~~__________~~ Date of Letter of Credit: ~~______________~~ Date of Draft: ~~______________~~ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ~~____________________________~~ Dollars (U.S. ~~$____________~~$ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ~~___________~~. Payment by the bank pursuant to this drawing shall be made to ~~_________________________~~, ABA Number ~~___________________________~~, Account Number ~~_____________________~~, Attention: ~~_______________________________~~, Re: ~~_____________________________~~. To: [Issuing Bank] [Address] Attention: ~~______________ ______________________________ As Beneficiary~~ By: ~~__________________________~~ [Name and Title] PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: ~~_____________~~ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. ~~_______~~ (“Agreement) in the aggregate amount of ~~$_____________________~~$ , (“Letter of Credit Amount”) either [check the appropriate space]: _____ Seller failed to provide and maintain contract security in the manner required by Article XV of Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller failed to provide to NYSERDA proof that the system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by Section 13.01(e) of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; _____the Letter of Credit is currently set to expire within thirty (30) days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

Appears in 1 contract

Samples: Offshore Wind Renewable Energy Certificate Purchase and Sale Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. EXHIBIT B LETTER OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. ~~____________~~ DATE: ~~______________~~, ~~20__~~ 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY ~~00 XXXXXXXX~~ 17 COLXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 ~~LADIES~~ XXXXES AND GENTLEMEN: BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: ~~_________~~ IN YOUR FAVOR FOR THE ACCOUNT OF ______________ (THE "SELLER") FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS:OF 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ~~______________~~ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE SECOND (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE THIRD) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER [INSERT] DATE [INSERT].” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. MISCELLANEOUS THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] ~~__________________________~~ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit B - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. ~~__________~~ Date of Letter of Credit: ~~______________~~ Date of Draft: ~~______________~~ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ~~____________________________~~ Dollars (U.S. ~~$____________~~$ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ~~___________~~. Payment by the bank pursuant to this drawing shall be made to ~~_________________________~~, ABA Number ~~___________________________~~, Account Number ~~_____________________~~, Attention: ~~_______________________________~~, Re: ~~_____________________________~~. To: [Issuing Bank] [Address] Attention: ~~______________ ______________________________~~ As Beneficiary By: ~~__________________________~~ [Name and Title] Annex B to Exhibit B - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: ~~_____________~~ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. ~~_______~~ (“Agreement) in the aggregate amount of ~~$_____________________~~$ , (“Letter of Credit Amount”) either [check the appropriate space]: ~~_____~~ Seller failed to provide and maintain contract security in the manner required by Article XV of Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to ~~one-~~one- hundred (100) percent of the Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller failed to provide to NYSERDA proof that the system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by Section 13.01(e) of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; ~~_____~~the Letter of Credit is currently set to expire within thirty (30) days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to ~~one-~~one- hundred (100) percent of the Letter of Credit Amount. The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

Appears in 1 contract

Samples: Tier 4 Renewable Energy Certificate Purchase and Sale Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. IRREVOCABLE STANDBY LETTER OF CREDIT NO. ____________ DATE: ______________, 20__ BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: _________ IN YOUR FAVOR FOR THE ACCOUNT OF ______________ (THE "SELLER") FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS: 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ______________ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE ~~5:00~~ 2:00 P.M., NEW YORK TIME, ON THE ~~SECOND~~ NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE ~~THIRD~~SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER ~~[INSERT] DATE [INSERT]~~____________________ DATE___________________.” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED WITHOUT WRITTEN AMENDMENT FOR ONE YEAR PERIODS FROM THE PRESENT OR ANY FUTURE EXPIRY DATE UNLESS AT LEAST 30 CALENDAR DAYS PRIOR TO SUCH EXPIRATION DATE, WE SEND THE BENEFICIARY NOTICE AT THE ABOVE STATED ADDRESS BY OVERNIGHT COURIER, ATTN: NYSERDA GENERAL COUNSEL, WITH ELECTRONIC COPIES SENT TO XXXXXXXX@XXXXXXX.XX.XXX AND XXX@XXXXXXX.XX.XXX, THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT BEYOND THE INITIAL OR ANY EXTENDED EXPIRY DATE HEREOF. MISCELLANEOUS THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] __________________________ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK SIGHT DRAFT Letter of Credit No. __________ Date of Letter of Credit: ______________ Date of Draft: ______________ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ____________________________ Dollars (U.S. $____________). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ___________. Payment by the bank pursuant to this drawing shall be made to _________________________, ABA Number ___________________________, Account Number _____________________, Attention: _______________________________, Re: _____________________________. To: [Issuing Bank] [Address] Attention: ______________ ______________________________ As Beneficiary By: __________________________ PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: _____________ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. _______ (“Agreement) in the aggregate amount of $_____________________, (“Letter of Credit Amount”) either [check the appropriate space]: _____ Seller failed to ~~provide and maintain contract security in~~ execute the ~~manner required by Article XV of Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to~~ Agreement within one-hundred and eighty days (~~100~~180) ~~percent~~ calendar days of Seller’s receipt of a conformed copy of the ~~Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation;~~ Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller failed to provide to NYSERDA ~~proof that~~ additional Contract Security in the ~~system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by~~ amount required under Section ~~13.01(e~~15.01(b) of the Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller has failed to ~~submit its Construction~~ perform in that Seller’s Bid Facility has failed to attain a Statement of Qualification and/or to commence Commercial Operation on or before the Commercial Operation Milestone Date; under which circumstance NYSERDA is authorized and ~~Operations Plan~~ entitled to ~~the Bureau of Ocean Energy Management within the U.S. Department~~ draw an amount equal to one-hundred (100) percent of the ~~Interior within the timeline prescribed by Section 13.01(f)~~ Letter of ~~the Agreement~~Credit Amount. _____The ~~Operational~~ Installed Capacity is less than ~~95% of~~ the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Bid Capacity; under ~~either~~ which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to ~~95% of~~ the ~~Offer~~ Bid Capacity minus the ~~actual or intended Operational~~ Installed ~~Capacity,~~ Capacity divided by the ~~Offer~~ Bid Capacity~~. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement~~. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; . _____the Letter of Credit is currently set to expire within thirty (30) days and ~~the~~ Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. ~~The terms used herein which are not specifically defined herein are defined in~~ _____ Seller has defaulted on the ~~Letter~~ Agreement and has failed to cure such a default within the applicable cure period. _____ Seller has failed to report information to NYSERDA and has failed to cure such failure within the applicable cure period pursuant to Section 6.13 of ~~Credit or~~ the Agreement~~, referenced above~~.

Appears in 1 contract

Samples: Renewable Energy Standard Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. EXHIBIT B LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. ~~____________~~ DATE: ~~______________~~, ~~20__~~ 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 ~~LADIES AND GENTLEMEN:~~ BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: ~~_________~~ IN YOUR FAVOR FOR THE ACCOUNT OF ______________ (THE "SELLER") FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS:OF 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ~~______________~~ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE ~~5:00~~ 2:00 P.M., NEW YORK TIME, ON THE ~~SECOND~~ NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE ~~THIRD~~SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER ~~[INSERT]~~ DATE ~~[INSERT]~~.” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. ~~MISCELLANEOUS~~ IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED WITHOUT WRITTEN AMENDMENT FOR ONE YEAR PERIODS FROM THE PRESENT OR ANY FUTURE EXPIRY DATE UNLESS AT LEAST 30 CALENDAR DAYS PRIOR TO SUCH EXPIRATION DATE, WE SEND THE BENEFICIARY NOTICE AT THE ABOVE STATED ADDRESS BY OVERNIGHT COURIER, ATTN: NYSERDA GENERAL COUNSEL, WITH ELECTRONIC COPIES SENT TO XXXXXXXX@XXXXXXX.XX.XXX AND XXX@XXXXXXX.XX.XXX, THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT BEYOND THE INITIAL OR ANY EXTENDED EXPIRY DATE HEREOF. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] ~~__________________________~~ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK ~~SIGHT DRAFT~~ Letter of Credit No. ~~__________~~ Date of Letter of Credit: ~~______________~~ Date of Draft: ~~______________~~ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ~~____________________________~~ Dollars (U.S. ~~$____________~~$ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ~~___________~~. Payment by the bank pursuant to this drawing shall be made to ~~_________________________~~, ABA Number ~~___________________________~~, Account Number ~~_____________________~~, Attention: ~~_______________________________~~, Re: ~~_____________________________~~. To: [Issuing Bank] [Address] Attention: ~~______________ ______________________________ As Beneficiary~~ By: ~~__________________________ PAYMENT CERTIFICATE~~ [Name and Title] To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: ~~_____________~~ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. ~~_______~~ (“Agreement”) in the aggregate amount of ~~$_____________________~~$ , (“Letter of Credit Amount”) either [check the appropriate space]: ~~_____~~ [ Seller failed to ~~provide and maintain contract security in~~ submit the ~~manner~~ application of its key permit by the required ~~by Article XV of Agreement~~deadline under RESRFP24-1, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller failed to provide to NYSERDA proof that the system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by Section 13.01(e) of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; _____the Letter of Credit is currently set to expire within thirty (30) days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. .] The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

Appears in 1 contract

Samples: Res Standard Form Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. EXHIBIT B LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. _______~~___~~_ __ DATE: ______________, 20__ BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT ~~NO: _________~~ NO IN YOUR FAVOR FOR THE ACCOUNT OF ______________ (THE "SELLER") FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS: 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ______________ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE SECOND (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE THIRD) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER [INSERT] DATE [INSERT].” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. MISCELLANEOUS THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] __________________________ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK SIGHT DRAFT Letter of Credit No. __________ Date of Letter of Credit: ______________ Date of Draft: ______________ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ____________________________ Dollars (U.S. $____________). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ___________. Payment by the bank pursuant to this drawing shall be made to _________________________, ABA Number ___________________________, Account Number _____________________, Attention: _______________________________, Re: _____________________________. To: [Issuing Bank] [Address] Attention: ______________ ______________________________ As Beneficiary By: __________________________ PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: _____________ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. _______ (“Agreement) in the aggregate amount of $_____________________, (“Letter of Credit Amount”) either [check the appropriate space]: _____ Seller failed to provide and maintain contract security in the manner required by Article XV of Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller failed to provide to NYSERDA proof that the system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by Section 13.01(e) of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; _____the Letter of Credit is currently set to expire within thirty (30) days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

Appears in 1 contract

Samples: Tier 4 Renewable Energy Certificate Purchase and Sale Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. EXHIBIT B LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. ~~____________~~ DATE: ~~______________~~, ~~20__~~ 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: ~~_________~~ IN YOUR FAVOR FOR THE ACCOUNT OF ______________ (THE "SELLER") FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS:OF 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ~~______________~~ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE ~~5:00~~ 2:00 P.M., NEW YORK TIME, ON THE ~~SECOND~~ NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE ~~THIRD~~SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER ~~[INSERT]~~ DATE ~~[INSERT]~~.” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. ~~MISCELLANEOUS~~ IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED WITHOUT WRITTEN AMENDMENT FOR ONE YEAR PERIODS FROM THE PRESENT OR ANY FUTURE EXPIRY DATE UNLESS AT LEAST 30 CALENDAR DAYS PRIOR TO SUCH EXPIRATION DATE, WE SEND THE BENEFICIARY NOTICE AT THE ABOVE STATED ADDRESS BY OVERNIGHT COURIER, ATTN: NYSERDA GENERAL COUNSEL, WITH ELECTRONIC COPIES SENT TO XXXXXXXX@XXXXXXX.XX.XXX AND XXX@XXXXXXX.XX.XXX, THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT BEYOND THE INITIAL OR ANY EXTENDED EXPIRY DATE HEREOF. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] ~~__________________________~~ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit B - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. ~~__________~~ Date of Letter of Credit: ~~______________~~ Date of Draft: ~~______________~~ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ~~____________________________~~ Dollars (U.S. ~~$____________~~$ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ~~___________~~. Payment by the bank pursuant to this drawing shall be made to ~~_________________________~~, ABA Number ~~___________________________~~, Account Number ~~_____________________~~, Attention: ~~_______________________________~~, Re: ~~_____________________________~~. To: [Issuing Bank] [Address] Attention: ~~______________ ______________________________ As Beneficiary~~ By: ~~__________________________ PAYMENT CERTIFICATE~~ [Name and Title] To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: ~~_____________~~ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. ~~_______~~ (“Agreement) in the aggregate amount of ~~$_____________________~~$ , (“Letter of Credit Amount”) either [check the appropriate space]: ~~_____~~ Seller has failed to ~~provide~~ report information to NYSERDA and maintain contract security in the manner required by Article XV of Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller failed to ~~provide to NYSERDA proof that the system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee~~ cure such failure within the ~~timeline prescribed by~~ applicable cure period pursuant to Section ~~13.01(e)~~ 6.13 of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; _____the Letter of Credit is currently set to expire within thirty (30) days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

Appears in 1 contract

Samples: Renewable Energy Standard Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. EXHIBIT B LETTER OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. ~~____________~~ DATE: ~~______________~~, ~~20__~~ 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: ~~_________~~ IN YOUR FAVOR FOR THE ACCOUNT OF ~~______________~~ (THE "“SELLER"”) FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS: 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "“SIGHT DRAFT"”); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "“PAYMENT CERTIFICATE"”). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ~~______________~~ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 ONE YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE SECOND (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE THIRD) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER [INSERT] DATE [INSERT].” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. ~~MISCELLANEOUS~~ THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] ~~__________________________~~ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit B - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. ~~__________~~ Date of Letter of Credit: ~~______________~~ Date of Draft: ~~______________~~ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ~~____________________________~~ Dollars (U.S. ~~$____________~~$ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ~~___________~~. Payment by the bank pursuant to this drawing shall be made to ~~_________________________~~, ABA Number ~~___________________________~~, Account Number ~~_____________________~~, Attention: ~~_______________________________~~, Re: ~~_____________________________~~. To: [Issuing Bank] [Address] Attention: ~~______________ ______________________________~~ As Beneficiary By: ~~__________________________ PAYMENT CERTIFICATE~~ [Name and Title] To: [Issuing Bank] [Address] Annex B to Exhibit B - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE Re: Irrevocable Standby Letter of Credit No: ~~_____________~~ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. ~~_______~~ (“Agreement”) in the aggregate amount of ~~$_____________________~~$ , (“Letter of Credit Amount”) either [check the appropriate space]: _____ Seller failed to provide and maintain contract security in the manner required by Article XV of Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller failed to provide to NYSERDA proof that the system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by Section 13.01(e) of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; _____the Letter of Credit is currently set to expire within thirty (30) days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

Appears in 1 contract

Samples: Tier 4 Renewable Energy Certificate Purchase and Sale Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. EXHIBIT B LETTER OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. ~~____________~~ DATE: ~~______________~~, ~~20__~~ 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: ~~_________~~ IN YOUR FAVOR FOR THE ACCOUNT OF ______________ (THE "SELLER") FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS:OF 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "“SIGHT DRAFT"”); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "“PAYMENT CERTIFICATE"”). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ~~______________~~ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE ~~5:00~~ 2:00 P.M., NEW YORK TIME, ON THE ~~SECOND~~ NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE ~~THIRD~~SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER ~~[INSERT]~~ DATE ~~[INSERT]~~.” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. ~~MISCELLANEOUS~~ IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED WITHOUT WRITTEN AMENDMENT FOR ONE YEAR PERIODS FROM THE PRESENT OR ANY FUTURE EXPIRY DATE UNLESS AT LEAST 30 CALENDAR DAYS PRIOR TO SUCH EXPIRATION DATE, WE SEND THE BENEFICIARY NOTICE AT THE ABOVE STATED ADDRESS BY OVERNIGHT COURIER THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT BEYOND THE INITIAL OR ANY EXTENDED EXPIRY DATE HEREOF. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] ~~__________________________~~ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit B - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. ~~__________~~ Date of Letter of Credit: ~~______________~~ Date of Draft: ~~______________~~ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ~~____________________________~~ Dollars (U.S. ~~$____________~~$ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ~~___________~~. Payment by the bank pursuant to this drawing shall be made to ~~_________________________~~, ABA Number ~~___________________________~~, Account Number ~~_____________________~~, Attention: ~~_______________________________~~, Re: ~~_____________________________~~. To: [Issuing Bank] [Address] Attention: ~~______________ ______________________________~~ As Beneficiary By: ~~__________________________~~ [Name and Title] Annex B to Exhibit B - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: ~~_____________~~ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. ~~_______~~ (“Agreement”) in the aggregate amount of ~~$_____________________~~$ , (“Letter of Credit Amount”) either [check the appropriate space]: ~~_____~~ Seller failed to ~~provide~~ execute the Agreement within one-hundred and ~~maintain contract security in~~ eighty days (180) calendar days of Seller’s receipt of a conformed copy of the ~~manner required by Article XV of~~ Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Amount Seller failed to provide to NYSERDA ~~proof that~~ additional Contract Security in the ~~system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by~~ amount required under Section ~~13.01(e~~15.01(b) of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; _____the Letter of Credit is currently set to expire within thirty (30) days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

Appears in 1 contract

Samples: Build Ready Standard Form Agreement

ADMISSIBILITY OF REPRODUCTION OF CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, regardless of whether the original of said contract is in existence. IRREVOCABLE STANDBY LETTER OF CREDIT NO. ~~____________~~ DATE: ~~______________~~, ~~20__~~ 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [SELLER] [SELLER’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: ~~_________~~ IN YOUR FAVOR FOR THE ACCOUNT OF ______________ (THE "SELLER") FOR AN AMOUNT OR AMOUNTS NOT TO EXCEED IN THE AGGREGATE [STATE IN WORDS] U.S. DOLLARS AVAILABLE BY YOUR DRAFTS AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK], NEW YORK, NEW YORK, USA, WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENTS:OF 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "“SIGHT DRAFT"”); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "“PAYMENT CERTIFICATE"”). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ~~______________~~ ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE] SUBJECT TO THE FOLLOWING SENTENCE. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED FOR SUCCESSIVE ADDITIONAL PERIODS OF 1 YEAR FROM ANY FUTURE EXPIRATION DATE HEREOF, WITHOUT AMENDMENT, UNLESS AT LEAST 90 DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE NOTIFY YOU BY COURIER OR REGISTERED MAIL THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE SECOND (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE THIRD) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER [INSERT] DATE [INSERT].” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. MISCELLANEOUS THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS, ENTITIES, AND VESSELS. OUR ENTITIES, INCLUDING BRANCHES AND, IN CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE SANCTIONS. [NAME AND ADDRESS OF ISSUING BANK] ~~__________________________~~ AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit B - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. ~~__________~~ Date of Letter of Credit: ~~______________~~ Date of Draft: ~~______________~~ FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. ~~____________________________~~ Dollars (U.S. ~~$____________~~$ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Seller]. Drawn under [Name of Bank] Letter of Credit No. ~~___________~~. Payment by the bank pursuant to this drawing shall be made to ~~_________________________~~, ABA Number ~~___________________________~~, Account Number ~~_____________________~~, Attention: ~~_______________________________~~, Re: ~~_____________________________~~. To: [Issuing Bank] [Address] Attention: ~~______________ ______________________________ As Beneficiary~~ By: ~~__________________________~~ [Name and Title] PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: ~~_____________~~ [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Seller, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. ~~_______~~ (“Agreement”) in the aggregate amount of ~~$_____________________~~$ , (“Letter of Credit Amount”) either [check the appropriate space]: _____ Seller failed to provide and maintain contract security in the manner required by Article XV of Agreement, under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ The Agreement has been Terminated prior to Commercial Operation; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. _____ Seller failed to provide to NYSERDA proof that the system reliability impact study was accepted by the NYISO Transmission Planning Advisory Subcommittee within the timeline prescribed by Section 13.01(e) of the Agreement. _____ Seller failed to submit its Construction and Operations Plan to the Bureau of Ocean Energy Management within the U.S. Department of the Interior within the timeline prescribed by Section 13.01(f) of the Agreement. _____The Operational Installed Capacity is less than 95% of the Offer Capacity or Seller has notified NYSERDA in writing that Seller intends to build the Selected Project such that, once complete, the Operational Installed Capacity will be less than 95% of the Offer Capacity; under either which circumstance, NYSERDA is authorized to draw a percentage of the Letter of Credit Amount, such percentage will be equal to 95% of the Offer Capacity minus the actual or intended Operational Installed Capacity, divided by the Offer Capacity. _____ Seller failed to submit its certificate application to the New York Public Service Commission within the timeline prescribed by Section 13.01(i) of the Agreement. _____ Seller has assigned its rights under the Agreement and the assignee has not delivered to the undersigned Beneficiary a replacement letter of credit satisfying the requirements of the Agreement; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount; _____the Letter of Credit is currently set to expire within thirty (30) days and the Seller has not made arrangements acceptable to the undersigned Beneficiary to provide a substitute letter of credit prior to such expiration; under which circumstance NYSERDA is authorized and entitled to draw an amount equal to one-hundred (100) percent of the Letter of Credit Amount. The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.

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Samples: Offshore Wind Renewable Energy Certificate Purchase and Sale Agreement

Common use of ADMISSIBILITY OF REPRODUCTION OF CONTRACT Clause in Contracts